Kolek v. Colvin
Filing
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Judge Michael A. Ponsor: ORDER entered: On September 30, 2014, the court issued a brief memorandum denying Plaintiff's Motion for Judgment on the Pleadings (Dkt. No. 13) and allowing Defendant's Motion for Order Affirming Decision of Commissioner (Dkt. No. 15). This more detailed memorandum sets forth the court's rationale for those rulings. The clerk is now ordered to enter final judgment for Defendant. This case may now be closed. It is So Ordered. (Kaplan, Jennifer)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
RONALD JOHN KOLEK,
Plaintiff,
v.
CAROLYN W. COLVIN,
Commissioner of the Social
Security Administration,
Defendant.
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C.A. No. 13-cv-30156-MAP
MEMORANDUM AND ORDER REGARDING
PLAINTIFF’S MOTION FOR JUDGMENT ON THE PLEADINGS
AND DEFENDANT’S MOTION FOR ORDER AFFIRMING DECISION OF
COMMISSIONER
(Dkt. Nos. 13 & 15)
December 5, 2014
PONSOR, U.S.D.J.
I.
INTRODUCTION
Plaintiff, Ronald John Kolek, has appealed the final
decision of Defendant, Carolyn W. Colvin, Commissioner of
the Social Security Administration, denying his application
for Disability Insurance Benefits and Supplemental Security
Income.
The parties filed cross-motions for judgment on the
pleadings.
The court, in a brief memorandum issued on
September 30, 2014, allowed Defendant’s Motion for Order
Affirming Decision of Commissioner (Dkt. No. 15) and denied
Plaintiff’s Motion for Judgment on the Pleadings (Dkt. No.
13).
See Dkt. No. 18.
The court’s ruling indicated that
final judgment would not enter, however, until a more
detailed memorandum setting forth the court’s rationale
issued.
This is that memorandum.
The central issues presented by the cross motions were
whether an inconsistency between a hypothetical posed to the
vocational expert and a limitation described in Plaintiff’s
Residual Functional Capacity (“RFC”) warranted reversal and,
in addition, whether the Administrative Law Judge (“ALJ”)
properly weighed Plaintiff’s credibility.
As the discussion
below makes clear, any inconsistency between the
hypothetical question and the RFC was harmless, and
substantial evidence supported the ALJ’s assessment of
Plaintiff’s credibility.
Given this, the court is obliged
to order entry of judgment for Defendant.
II.
DISCUSSION
The parties are well aware of the factual and
procedural history of this case, the standard of review, and
the five-step sequential analysis the ALJ must perform.
The
court will, accordingly, proceed directly to the two
arguments advanced by Plaintiff as to why the ALJ erred in
reaching his decision.
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A.
The ALJ’s Hypothetical
The ALJ conducted a hearing in accordance with the
familiar five-step process set forth in the relevant
regulations and case law.
See 20 C.F.R. §§ 404.1520 &
416.920; Goodermote v. Sec’y of Health & Human Servs., 690
F.2d 5, 6-7 (1st Cir. 1982).
Plaintiff contends that the
ALJ erred by posing a hypothetical question to a vocational
expert that contained limitations that were materially less
restrictive than those listed in the final RFC.
This
inconsistency, Plaintiff says, undermined the ALJ’s finding,
at the fifth step of the analysis, that Plaintiff was not
disabled.
At the hearing, the ALJ asked the vocational expert
whether a person with an identical background to Plaintiff
could find work, with the caveat that the “work should not
be in environments with more than incidental exposure to
fumes or cold or vibration.”
(“A.R.”) 91-92.)
(Administrative Record
This limitation, Plaintiff argues, was
inconsistent with the RFC, wherein the ALJ determined that
Plaintiff was “unable to perform work that allowed for
exposure to extremes of cold or vibration.”
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(A.R. 30.)
Based, in part, on the hypothetical question posed, the
vocational expert testified that Plaintiff was able to work
in the national economy as a parking lot attendant, cashier
II, and ticket-seller.
(AR 92.)
Plaintiff’s argument fails for several reasons.
First,
it is not apparent that the hypothetical posed by the ALJ
was inconsistent with the RFC.
While the wording of the
hypothetical was not identical to the language in the RFC,
it conveyed the same limitations.
An employee that was
“unable to perform work that allowed for exposure to
extremes of cold or vibration,” as the RFC noted, would
logically be able to perform a job in a work environment
with no more than “incidental exposure to fumes or cold or
vibration,” as the ALJ asked.
Thus, the ALJ’s hypothetical
posed to the expert was essentially consistent with the RFC.
Second, even if the court were to construe the ALJ’s
hypothetical question as inconsistent with the RFC, the
error would be harmless.
It is well established that
“remand is not essential if it will amount to no more than
an empty exercise.”
Ward v. Comm’r of Soc. Sec., 211 F.3d
652, 656 (1st. Cir. 2000).
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In this case, remand would be futile because the
positions that the vocational expert testified the Plaintiff
was capable of performing -- parking lot attendant, cashier
II, and ticket seller -- do not require exposure to extreme
cold or vibrations.
Thus, even if this court were to remand
the case back to an ALJ, any correction in this minor
inconsistency in the hypothetical would still result in the
finding that Plaintiff was capable of performing positions
that do not entail exposure to extreme temperatures or
vibrations.
See, e.g., Dictionary of Occupational Titles
(DICOT) 915.473-010, Parking Lot Attendant, 1991 WL 687865
(noting that the position does not include exposure to
extreme cold, extreme heat, or vibration); DICOT 211.462010, Cashier II, 1991 WL 671840 (same); DICOT 211.467-030,
Ticket Seller, 1991 WL 671853 (same).
Accordingly, the
ALJ’s error, assuming one occurred, did not prejudice
Plaintiff because the expert’s testimony would not have
changed.
B.
The Credibility Assessment
Plaintiff next argues that the ALJ improperly
discredited his testimony.
He contends that the ALJ failed
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to consider the entire record when concluding that
Plaintiff’s subjective complaints were inconsistent with the
medical evidence.
In making this claim, Plaintiff focuses
on his own subjective characterizations of his pain and on
certain medical records that, he says, support him.
Because
substantial evidence does not support the ALJ’s assessment
of his credibility, Plaintiff says, the decision must be
reversed and remanded as a matter of law.
It is axiomatic that the Commissioner's findings “as to
any fact, if supported by substantial evidence, shall be
conclusive.”
42 U.S.C. § 405(g).
Accordingly, the court
must affirm the Commissioner's findings if “a reasonable
mind, reviewing the evidence in the record as a whole, could
accept it as adequate to support his conclusion.”
Rodriguez
v. Sec'y of Health & Human Servs., 647 F.2d 218, 222 (1st
Cir. 1981).
Affirmance is warranted “even if the record
arguably could justify a different conclusion.”
Rodriguez
Pagan v. Sec'y of Health & Human Servs., 819 F.2d 1, 3 (1st
Cir. 1987) (per curiam).
Here, substantial evidence supports the ALJ’s decision
that Plaintiff’s subjective complaints were not sufficiently
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supported by the medical record.
Though Plaintiff does
point to some medical records that tend to support his
disability claim, the record must be read in its totality.
Viewed in this light, the ALJ had a more than adequate basis
to find Plaintiff’s testimony inconsistent.
The ALJ cited
Plaintiff’s ability to perform some daily living activities;
his conservative treatment plan, which the ALJ found
indicative of less serious injuries; his work history
following the onset of the injury; and medical records in
which a physician noted the inexplicability of Plaintiff’s
subjective complaints.
(A.R. 33-39.)
Accordingly, the ALJ
did not impermissibly minimize the significance of
Plaintiff’s testimony.
Instead, he considered the record
and attributed more weight to the evidence that suggested
Plaintiff’s limitations were less severe than he contended.
The test here is not whether this court might
personally have made a different decision, or whether some
evidence existed in the record supporting Plaintiff’s
position.
The task at this stage is simply to determine
whether the Commissioner’s decision was supported by
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substantial evidence.
Since it was, Defendant is entitled
to judgment in her favor.
III. CONCLUSION
As noted, the court has previously denied Plaintiff’s
Motion for Judgment on the Pleadings, (Dkt. No. 13) and
allowed Defendant’s Motion for Order Affirming Decision of
Commissioner, (Dkt. No. 15).
For the foregoing reasons, the
clerk is now ordered to enter final judgment for Defendant.
This case may now be closed.
It is So Ordered.
/s/ Michael A. Ponsor
MICHAEL A. PONSOR
U. S. District Judge
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